The kind of extremism on display on the Planned Parenthood videotapes and in the reflexive closing of ranks around the group—whose own leadership has done more to disavow its grotesqueries, or at least the depictions of them, than have its political supporters—is the product of Roe v. Wade, but not for the reasons commonly supposed.
While many have celebrated the result in Obergefell v. Hodges, fewer have praised the craftsmanship of Justice Anthony Kennedy’s opinion. That is as it should be because the opinion is longer on sentiment and empathy than legal analysis. And yet it is now as much a part of the United States Reporter as the most well-reasoned judgment. Thus, it is worth looking at its doctrinal implications, none of which are happy.
First, Kennedy consciously removes the historical constraints on the Court’s ability to declare new fundamental rights. Washington v. Glucksberg (1997), the most important modern substantive due process case, required fundamental rights to be deeply rooted in the history and tradition of America. Whatever else can be said about it, same-sex marriage does not begin to meet that test. Kennedy says correctly that some other substantive due process cases did not meet that test either (Roe comes obviously to mind). While Kennedy does not quite say that he is overruling Glucksberg altogether, its relevance has been gravely weakened. Justices seem free to look to their views on the nature of justice rather than history to discern new fundamental rights.
While some libertarians in the past have been enthusiastic about this development, it is unlikely the Court will use this power to pursue economic liberties. I think this development is likelier to revive claims that some other social rights, like the right to assisted suicide, are also constitutional ones.
Kennedy also gestured to the equal protection clause in his decision.
I’ve been traveling today, driving from Amherst back to Washington, and so I’m catching up with some of the comments drawn by the piece on Commencements and the bizarre implication that springs from the judgment of the Court in Lee v. Weisman. I want to thank Carl Scott for his stirring words on Natural Rights & the Right to Choose. But on this matter of whether I would try to make use of the lever revealed in this case, he has me wrong on one critical point: I’m always in favor of the conservatives making use of the ‘principles’ laid down by the Left in order to show how those principles would work quite forcefully against them. The Left persistently fails to live by the rules or principles it lays down for others, and so the only way of making them back away is to use the precedents they set in ways that they’ll find quite jarring.
Few, if any, constitutional scholars think Justice Harry Blackmun’s majority opinion in Roe v. Wade (1973) was flawless. When Jack Balkin invited eleven leading scholars to rewrite the decision for his 2007 book What Roe v. Wade Should Have Said, each of the contributors departed in some way from the Court’s original approach. The one thing scholars across the ideological spectrum can agree on is that the Court should have said something else.
This Liberty Law Talk is with political scientist Justin Dyer on his latest book, Slavery, Abortion, and the Politics of Constitutional Meaning (Cambridge University Press, 2013). In debates over the legality of abortion common opinion has focused on the connections between the legal treatment of slavery in the nineteenth century and the contemporary status of abortion as a fundamental right. Dyer takes this debate as his starting point but goes much deeper by showing the layers of constitutional, political, and philosophical meaning linking slavery and abortion in the American experience. This conversation covers the ground of the Dred Scott opinion,…
April's Liberty Forum attempts to answer the question What is Social Justice? Essays from Sam Gregg, Eric Mack, and David Rose evaluate this question from various philosophical, economic, and political perspectives. Gregg's lead essay opens as follows: Few terms have assumed more prominence in public discourse, especially that emanating from the left, in recent decades than “social justice.” It has now become part of the rhetorical apparatus of virtually all center-left, social democratic and labor political movements as well as central to the language of modern liberalism. In Western Europe, the term has also been embraced by more-than-a-few center-right, Christian Democrat,…
Roe v. Wade remains, for us, the most contentious decision of our Supreme Court. Here’s the advice of our Supreme Court: The opponents of Roe should get over it. In its opinion in Planned Parenthood v. Casey (1992), the Court explained:
Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court’s interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.
The rare, comparable case that the Court highlights in Casey is Brown v. Board of Education. Reversing Brown and restoring the constitutionality of segregation would throw the nation into confusion and chaos. And that means that Brown has “rare precedential force.” The burden of proof that could lead to its reversal is more severe than other precedents. It would require “the most convincing justification.” The Court claimed to authoritatively resolve the controversy that produced a national division by binding the country together through a common constitutional mandate.
This post consists of two parts: (1) thoughts prompted by re-reading John Hart Ely’s Democracy and Distrust; and (2) something resembling a meditation on the Guaranty Clause. As the reader will see, I am not able to articulate the connection between the two topics in anything but the most general terms. I hope others may be able to do so.
I thought I would mention Gerald Russello's review of Justice Stephen Breyer's book on the Supreme Court and constitutional law, entitled "Making Our Democracy Work: A Judges View." Breyer published an earlier book on the same subject some years ago that I reviewed here. Breyer is an opponent of originalism who defends an activist Supreme Court but claims to be in favor of judicial restraint. It is maddening. In the earlier book, Breyer did not say a word about Roe v. Wade or abortion, even though he authored one of the Court's most aggressive decisions in this area and one might…